‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

donderdag 7 juli 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - weeks 26-27

Refusal to grant residence permit to gay couple on family grounds was unjustified discrimination - The  case of Taddeucci and McCall v. Italy (only in French) concerned a refusal by the Italian authorities to grant a residence permit to a gay couple on family grounds.
The European Court of Human Rights held in this case, by six votes to one, that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The Court found in particular that the situation of Mr Taddeucci and Mr McCall, a gay couple, could not be understood as comparable to that of an unmarried heterosexual couple. As they could not marry or, at the relevant time, obtain any other form of legal recognition of their situation in Italy, they could not be classified as “spouses” under national law. The restrictive interpretation of the notion of family member constituted, for homosexual couples, an insuperable obstacle to the granting of a residence permit on family grounds. That restrictive interpretation of the concept of family member, as applied to Mr McCall, did not take due account of the applicants’ personal situation and in particular their inability to obtain a form of legal recognition of their relationship in Italy. In deciding to treat homosexual couples in the same way as heterosexual couples without any spousal status, the State had breached the applicants’ right not to be subjected to discrimination based on sexual orientation in the enjoyment of their rights under Article 8 of the Convention.
Judge Spano expressed a concurring opinion, joined by Judge Bianku
1. I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change.
2. I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.
3. As Italy decided to afford foreign nationals the ability to request residence permits if they were “family members” of citizens, the application of that system of domestic law could not be discriminatory (see E.B. v. France [GC], no. 43546/02, § 49, 22 January 2008). It follows that the impossibility in Italy at the material time for same-sex couples to acquire marital status or other legal recognition of their relationship could not, under any reasonable interpretation of Article 8 taken in conjunction with Article 14 of the Convention, have made their relationships any less worthy of being treated as constituting a family unit within the particular context of immigration proceedings.
The judgment does nothing more than require Italy to take due account of the existence of a serious and stable same-sex relationship in this specific context. The Court thus firmly rejects the argument that States can legitimately invoke the concept of the “traditional family” as a basis for denying a request for a residence permit made by a foreign national who is in a relationship with a citizen of the same sex.
4. In conclusion, the fundamental principle of human dignity, which is one of the cornerstones of Article 8 of the Convention, guarantees to each and every individual the right to found a family with whomever they choose, irrespective of their sexual identity or sexual orientation.
I concur in the judgment.
Turkish authorities did not effectively protect the life of a woman threatened with death by her husband - case of Halime Kılıç v. Turkey - violation of Article 2 (right to life) ECHR - The case concerned the death of Ms Kılıç’s daughter, Fatma Babatlı, who was killed by her husband despite having lodged four complaints and obtained three protection orders and injunctions. The Court found in particular that the domestic proceedings had failed to meet the requirements of Article 2 of the Convention by providing protection for Fatma Babatlı. By failing to punish the failure by Fatma Babatlı’s husband to comply with the orders issued against him, the national authorities had deprived the orders of any effectiveness, thus creating a context of impunity enabling him to repeatedly assault his wife without being called to account.
The Court also found it unacceptable that Fatma Babatlı had been left without resources or protection when faced with her husband’s violent behaviour and that in turning a blind eye to the repeated acts of violence and death threats against the victim, the authorities had created a climate that was conducive to domestic violence. 

The requirement on a judge to give relevant and sufficient reasons for detention is applicable as from the first decision ordering detention - case of Buzadji v. the Republic of Moldova - violation of Article 5 § 3 ECHR - The case concerned a businessman’s detention pending trial for ten months. In July 2006 a criminal investigation was initiated against Mr Buzadji, the director of a State company supplying liquefied gas, concerning an alleged unsuccessful attempt to defraud the company. He was arrested in May 2007 and placed in detention pending trial. His detention on remand was extended on a number of occasions, until July 2007 when the courts accepted Mr Buzadji’s request to be placed under house arrest. He remained under house arrest until March 2008 when he was released on bail and was eventually acquitted of all the charges for which he had been detained.
Looking at the justifications provided for Mr Buzadji’s provisional detention in his particular case, the Court considered that the reasons given by the national courts for ordering and prolonging his detention had been stereotyped and abstract as well as inconsistent. Indeed, neither in the initial detention order nor in the ensuing decisions prolonging his detention had the national courts made any assessment of Mr Buzadji’s character, his morals, his assets and links with the country or his behaviour during the first ten months of the criminal investigation. As regards the house arrest decisions, in spite of the courts finding that there were no reasons for his continued detention, they nevertheless ordered his house arrest briefly in June 2007 and then, from July 2007, for seven and half months. 

Judge Spano, joined by Judge Dedov, expressed a concurring opinion
1. Today’s Grand Chamber judgment provides a welcome clarification of the case-law on Article 5 § 3 of the Convention concerning the requirement that deprivation of liberty must be based throughout on relevant and sufficient grounds in order to remain valid. I fully concur with the judgment.

2. However, I consider it necessary to write separately to highlight an issue dealt with in paragraphs 106-110 of the judgment, which are prompted by an argument submitted by the Government dealing with the applicant’s house arrest. The Government rely on the fact that the applicant himself had asked to be placed under house arrest and had not challenged the court decisions ordering that measure. The Court proceeds by stating that this argument “raises an important question, namely whether the applicant had waived his right to liberty” and concludes in paragraph 109 that it is not prepared, on the facts, to accept that the applicant’s acquiescence in his house arrest and omission to challenge the measure amounted to a waiver of his rights under Article 5 of the Convention.
3. Although the reasoning is not fully clear on this issue, it seems to suggest that the Court proceeds on the assumption that, in principle, those detained within the meaning of Article 5 § 1 of the Convention can, by their actions, in effect waive their right to liberty. For the reasons that follow, this assumption is neither based on sound doctrinal or legal principles, nor does it have any basis in the Court’s existing case-law. In other words, the nature and substance of the fundamental right to liberty is not in my view subject to limitations based on the fact that a person who has been deprived of his liberty is considered to have waived his rights under Article 5.
4. To begin with, some conceptual remarks. For the question to arise whether a person can waive his right to liberty, one must exclude those situations where the person in question is not, de facto, detained within the meaning of Article 5 § 1. A homeless person or a vagrant who walks into a police station asking for a place to sleep, his wishes being met by placing him in a prison cell, is not deprived of his liberty if he can leave whenever he so chooses. Thus, by definition, deprivation of liberty arises where such a measure by a public authority, for example detention in prison or house arrest, is imposed on an unwilling person, thus limiting his or her personal autonomy and physical integrity. It is only in those situations where the question of his or her possible acquiescence arises, and consequently if and to what extent the acceptance of being detained can have a bearing on the protections afforded under Article 5 of the Convention.
5. To clarify this further, let us imagine a situation where a person suspected of a criminal offence is informed by a prosecutor that the latter considers that all legal conditions are met for detaining the suspect on remand. However, so as not to waste time, the prosecutor asks whether the suspect accepts being detained for thirty days without the prosecutor seeking confirmation by a court as required by domestic law. The suspect accepts and is detained.
6. Does the suspect’s consent to the imposition of the detention measures have any bearing on his right to liberty? In other words, can the fact that the suspect, on the basis of clear and informed consent, has acquiesced in being detained limit his protections under Article 5 of the Convention, namely that the detention must be “lawful” under paragraph 1 and can only be permitted under one of the sub-para­graphs of the same paragraph? Or does it mean that the State is no longer under an obligation to bring the suspect promptly before a judge under Article 5 § 3 or to provide the detainee with the procedural safeguards of having the detention reviewed by a court under Article 5 § 4 in order to examine whether it is still based on relevant and sufficient grounds?
7. In my view, the answer is in the negative. The nature and substance of the right to liberty under the Convention is not amenable to any kind of “waiver of rights” analysis akin to the one accepted by the Court under Article 6 of the Convention. Also, and not surprisingly, this has been the consistent position of the Court until today. In its settled case-law, the Court has proclaimed that the right to liberty is too important in a “democratic society”, within the meaning of the Convention, for a person to lose the benefit of the protection of the Con­vention for the single reason that he gives himself up to be taken into detention. Detention may violate Article 5 even though the person concerned has agreed to it (see Venskutė v. Lithuania, no. 10645/08, § 72, 11 December 2012, with further references, and Storck v. Germany, no. 61603/00, § 75, ECHR 2005-V). Also, as to the Court’s important supervisory role in this regard, the Court proclaimed as early as in the Belgian Vagrancy Case of 1971 (De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12) that “when the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees are necessary in every case”.
8. In conclusion, I am respectfully of the view that the Grand Chamber erred in the present case in proceeding on the assumption that a waiver of the right to liberty is, in principle, possible under Article 5 of the Convention. The Govern­ment’s arguments as to the applicant’s acquiescence in his house arrest should have been dealt with as, in essence, a non-exhaustion of domestic remedies argument under Article 35 § 1 of the Convention. Taking account of the flexible concept of exhaustion of domestic remedies in the Court’s case-law, that argument should then have been rejected, the Court accepting that in the light of the particular circumstances of the case the applicant was not required to challenge the court decisions ordering the measure.
Dismissal of appeal on grounds of unlawful appointment of new lawyer during pre-trial investigation breached due process rights - case of Duceau v. France - violation of Article 6 § 1 ECHR - The case concerned the dismissal of an appeal on account of the appointment of a new lawyer
without complying with a procedural rule (Article 115 of the Code of Criminal Procedure).
The Court observed that the investigating judge had been fully informed of the change of lawyer during the pre-trial investigation. After initially finding the appointment inadmissible the judge had then approved it, as shown by the express terms of his decision of 29 June 2009. The Court noted that, in his opinion on Mr Duceau’s appeal on points of law, the public prosecutor at the Court of Cassation had also pointed out that the new lawyer, Mr L., had been entitled to regard his appointment as lawful. The Court found that the Court of Appeal’s inadmissibility decision, upheld by the Court of Cassation, had breached Mr Duceau’s due process rights.

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments. 

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